“Here are your blindfolds,” said one of the managers, opening the door and handing the children three pieces of black cloth. The Baudelaires suspected he was Ernest, as he hadn’t bothered to say ‘Hello.’ “Blindfolds?” Violet asked. “Everyone wears blindfolds at a High Court trial,” the manager replied, “except the judges, of course. Haven’t you heard the expression ‘Justice is blind’?”

Tony Strickland, according to Wikipedia, is a former Californian legislator who twice failed to make the jump to the US Congress. Strickland’s fellow High Court appellant, Donald Galloway, has a longer entry in the Internet’s encyclopaedia thanks to his prominent roles in 1960s procedural Ironside and 1980s soap General Hospital. The third man arrested alongside them on Friday 1 July 2011 doesn’t satisfy Wikipedia’s significance criterion; however, Google reveals that one Edmund Hodges is seeking a female penpal willing to overlook his imprisonment for a dramatic Chicago bank heist. Joining Strickland, Galloway and Hodges at the apex court is Rick Tucker, who was charged nearly two years after the others and whose name appears alongside Buddy Holly’s and Roy Orbison’s on various YouTube clips.

The only thing that the ex-legislator, ex-actor, ex-heister and ex-singer actually have in common is that their names were generated by one of the following websites:

Victoria’s Court of Appeal uses these sites ‘to comply with the state’s ubiquitous suppression laws, while avoiding the ‘alphabet soup’ problem posed by using initials instead. As Gageler J explains in Strickland (a pseudonym); Galloway (a pseudonym); Hodges (a pseudonym); Tucker (a pseudonym) v Commonwealth Director of Public Prosecutions & Ors[2018] HCA 53, the quartet’s pseudonyms are courtesy of ‘orders of the Supreme Court of Victoria, unchallenged in the appeals and made for reasons not revealed in the appellate record.’

All we really know about the four appellants is that they are either managers or employees of two companies that were given the (soupy) pseudonyms XYZ Ltd and QRS Ltd, presumably to the chagrin of a colour management company in Clayton South and a third party support company in Worcestershire. While all four men have appeared twice in Victoria Court of Appeal judgments in 2014 and 2017, the High Court judgment is the first time we learnt what they were actually arrested for in 2011 and 2013; Gageler J and Edelman J reveal that all four were charged with the federal offence of conspiracy to bribe a foreign public official and that three (excluding Tucker) were also charged with the Victorian offence of dishonestly falsifying a document for an accounting purpose. Each offence carries a maximum penalty of ten years in prison.

Well, there are two more things we now know. Justice Edelman quotes Strickland’s own counsel as admitting that the four were ‘”sharks”, not “minnows”‘. And a majority of the High Court has ruled that none of these sharks can ever be tried for their alleged crimes.

“Yes,” Klaus said, “but I always thought it meant that justice should be fair and unprejudiced.” “The verdict of the High Court was to take the expression literally,” said the manager, “so everyone except the judges must cover their eyes before the trial can begin.” “Scalia,” Sunny said. She meant something like, “It doesn’t seem like the literal interpretation makes any sense,” but her siblings did not think it was wise to translate.

The four defendants owe their new impunity to events on Thursday 12 November 2009, nearly twenty months before any of them were charged. A year earlier, the Australian Crime Commission received information from an ‘unregistered human source’ alleging criminal activity at XYZ Ltd. Over the next six months, the ACC reviewed the allegations and decided against investigating them itself. Instead, the ACC referred them to the Australian Federal Police, which quickly launched Operation ‘Thuja’ (a pseudonym for the operation’s arbitrary codename and also, according to Wikipedia, a genus of trees that make excellent hedges.) After a visit to XYZ Ltd’s premises, Thuja staff had an enormous pile of documents to sift through.

Crucially, the ACC stayed in touch with Thuja. Indeed, from the moment it referred XYZ’s shenanigans to the AFP, ACC staff made it clear that the AFP was welcome to use the Commission’s most significant resource — its statutory authority to force people who might know something to attend before it and answer questions — any question — at all — on oath. Thuja’s staff, faced with reading some 80 million documents, certainly liked the sound of that. At a meeting at the ACC’s Melbourne officers on Friday 6 November 2009, Thuja and ACC staff agreed on a timeline to ‘examine’ various XYZ and QRS employees and directors. But there was a hiccup: the manager of the ACC’s original review of the allegations and the head of Thuja each recommended against using coercive powers albeit for different reasons: the former because the powers shouldn’t be used on likely criminals and the latter because XYZ was accused of crimes that fell outside the ACC Board’s recent determination of which financial crimes merited the use of coercive questioning powers.

Both objectors were prescient. As recounted by Anna Dziedzic inthisblog, the High Court in 2013 and 2014 ruled that coercive questioning powers should not be used against charged suspects and prosecutors should never be given the fruits of questioning of uncharged suspects, absent clear legislative authority or established legal tradition. More recently, ten of the eleven judges who ruled on the four defendants’ stay application held that the lack of a relevant prior Board determination meant that the coercive powers were unavailable to investigate XYZ’s crimes. Alas, in 2009, less wise heads prevailed. At the 6 November meeting, Thuja staff adopted the fiction that the investigation’s sole suspect was XYZ Ltd itself. Six days later, Tony Negus, appointed AFP Commissioner just two months earlier, gave Thuja his ‘approval’ to use the coercive powers on offer. That same day, he replaced Thuja’s head with ‘Officer Schwartz’ (yet another pseudonym of course), who overruled his or her predecessor’s legal objections.

We don’t yet know the full story of how things went so awry in Australia’s top two crime agencies. The detailed (but partly redacted) chronology the defendants submitted to the High Court shows that the AFP, the ACC and the Cth DPP were in constant communication throughout Operation Thuja. However, in 2014, the Victorian Court of Appeal barred the defendants from cross-examining their prosecutors on the legal advice they gave to the AFP, dramatically reading down a uniform evidence legislation exception to legal professional privilege.

But it’s easy to see how the AFP’s and ACC’s roles became so blurred. Despite the ACC being granted powers that went well beyond any held by regular Australian police officers, its Board is mainly made up of the heads of those same police forces. Its Chair was Negus himself, who headed both the ACC Board and the AFP until 2014, when he was appointed Australia’s high commissioner to Canada.

“Can we peek?” asked another person. “No peeking!” Justice Strauss said sternly. “Our system of justice isn’t perfect, but it’s the only one we have. I remind you that all three judges of the High Court are bare-eyed, and if you peek you will be guilty of contempt of court! ‘Contempt,’ by the way, is a word for finding something worthless or dishonorable.” “I know what the word ‘contempt’ means,” snarled a voice the children could not recognize.

The AFP’s and ACC’s huge error played out across 2010, with the investigation proceeding ‘outside-in’, from apparent peripheral players to actual suspects. Eleven people (including Galloway and Hodges) were examined between March and May, with a further five (including Strickland and Tucker) in November. In every case, the examinees were first offered an interview ‘under caution’ with the AFP but opted to exercise their right to remain silent. They were then summoned to an examination, where they were offered a different choice: speak the truth or go to jail for up to five years. As the High Court later held, the latter threat was legally unenforceable.

The person supposedly in charges of these events was Geoffrey Sage — that’s his real name, though he’s widely known as Tim — an ACC examiner. Sage had a lengthy career as a lawyer in law enforcement agencies, starting as a NSW Local Court clerk and then becoming a legal officer and regional director of the National Crime Authority, an Assistant Commissioner of the NSW Integrity Commission and finally appointed by the Governor-General as an examiner at the ACC, the NCA’s successor. His theoretical role in the examinations of XYZ and QRS employees was to decide who to summon, whether to require them to give sworn testimony and what questions the ACC counsel should ask them.. But, as a Victorian Supreme Court judge found in 2017, he didn’t exercise any independent judgment in these matters and instead simply did what Schwartz asked him to do, including endorsing questions that were actually prepared by the AFP. As she pithily put it, Sage provided Thuja with a ‘hearing room for hire’ — a ‘hearing room’ that was actually a Star Chamber.

Sage’s — well, Schwartz’s — decisions to summon and question criminal suspects about their alleged crimes – in circumstances where the privilege against self-incrimination was abrogated – completely contradicted guidelines written by both the AFP (setting out the force’s understanding of the ACC’s role) and the ACC (its standard operating procedures.) As well, Sage breached the ACC Act in at least two ways. Despite a provision requiring him to inform examinees if a non-ACC staff member is ‘present’ at the examination, he failed to inform the four defendants that between six and nine Thuja investigators were watching from another room. And, despite a statutory obligation to prohibit dissemination of the examination answers as needed to ensure that soon-to-be-charged examinees would receive a fair trial, he expressly permitted video and transcripts of their examinations to be given to both Thuja investigators and the Commonwealth DPP.

It is clear that the AFP and ACC had no idea that their actions had fatally damaged Operation Thuja. In mid-2010, an unnamed AFP Commander wrote an appreciative letter to an ACC investigator, Bruce Bullock, concluding:

The use of the ACC coercive powers in the course of AFP investigations is a highly valuable resource. The forging of a close working relationship between both agencies can only strengthen the capabilities of both law enforcement agencies.

The ACC has since been renamed the Australian Criminal Intelligence Commission, after it absorbed another struggling agency. Tim Sage currently sits on the ACIC’s internal management board.

“Name?” the judge asked. “Count Olaf,” Count Olaf replied. “Occupation?” “Impresario,” he said, using a fancy word for someone who puts on theatrical spectacles. “And are you innocent or guilty?” asked Justice Strauss.The children thought they could hear Olaf’s filthy teeth slide against his lips as he smiled. “I’m unspeakably innocent,” he said, and murmuring spread through the crowd like a ripple on the surface of a pond.

Even though their trial has never commenced (and now never will), the defendants’ prosecution has been before a Victorian Supreme Court judge at least four years. From August 2014 to June 2015, Justice Elizabeth Hollingworth presided over 57 days of hearings, including the examinations and cross-examinations of 23 witnesses from the ACC, AFP and DPP, and read over one thousand pages of submissions and an ‘extraordinary volume’ of documentation, all on the question of whether the prosecution can proceed despite the events in 2010. On two occasions, she ruled in the defence’s favour – once to let them to cross-examine their prosecutors about the legal advice they provided to their investigators; and once to grant the stay they sought – only to be overruled each time by a unanimous Court of Appeal that included Court President Chris Maxwell.

The issue before the High Court was whether the Court of Appeal was correct to overrule Hollingworth J’s stay. The Court of Appeal didn’t differ from her damning findings about Sage’s errors – indeed, they went further in labelling the entire examination both illegal and improper. But they found two errors in her rulings. First, they disagreed with her assessment Sage ‘was reckless as to his various obligations to an unacceptable degree’; not true, said the Court of Appeal, as he was merely negligently ignorant. Second, and more cogently, they held that she had been too lenient to the defendants at the stay hearing by seemingly excusing them the need to prove that Sage’s actions would disadvantage them at their trial; to the contrary, the defendants had failed to challenge the police’s claim that Sage’s examinations gave them little of substance and cited Gageler and Keane JJ’s view in a 2013 case that defendants are not ‘locked in’ to their earlier examination answers. Unsurprisingly, Gageler J reiterated these views in the High Court and he and Gordon J upheld the Court of Appeal’s ruling that any disadvantage the defendants faced could be managed by changing the prosecution team and barring the investigators from mentioning the coerced questioning.

But the plurality of Kiefel CJ, Bell and Nettle J firmly disagreed, unsurprisingly citing the contrary view of Bell and Hayne JJ in an earlier High Court case that a defendant who has already been compelled to reveal his or her account ‘can no longer decide the course which he or she should adopt at any subsequent trial according only to the strength of the prosecution case’ and firmly rejecting the Court of Appeal’s view that the defendants could have proven how they were disadvantaged:

After all, how were the [defendants] practically to go about that? Where, as here, there were some tens of millions of relevant documents and no documentary record of the distribution of examination product within the AFP and the Office of the CDPP and the manner in which it was used to inform prosecutorial decisions it would surely have been extremely difficult. And it would have been potentially dangerous for the appellants to make a serious attempt at discrediting the perfunctory denials of use which appeared in several prosecution witnesses’ affidavits, as it would have risked exacerbating the prejudice to the appellants by potentially exposing perceived weaknesses in the prosecution case and possible paths of available defences.

Likewise, the plurality (with Gageler J agreeing on this point) rejected as sophistry the Court of Appeal’s critique of Hollingworth J’s finding that Sage was reckless:

Plainly, her Honour used the term in the sense of heedlessness of or indifference towards the requirements of the ACC Act, and, semasiologically, that was an entirely apt description of Sage’s lack of care in the discharge of the functions legislatively entrusted to him in his capacity as examiner.

Like nearly all joint judgments in the High Court, we don’t know which of Kiefel CJ, Bell J or Nettle J wrote the plurality’s damning assessment of Sage (and, indirectly, the Court of Appeal.) But we can peek. ‘Semasiologically’ — a word that here means ‘a word that here means’ — has been used on occasion previously in both the High Court and the Court of Appeal, but always in judgments written by or joined in by one particular former judge of Victoria’s Court of Appeal.

“Now then, Baudelaires, are you guilty or innocent?” Once again, the Baudelaires hesitated before answering. Justice Strauss had not asked the children precisely what they were innocent or guilty of, and the expectant hush of the lobby did not make them want to ask the judge to clarify her question. In general, of course, the Baudelaire children believed themselves to be innocent, although they were certainly guilty, as we all are, of certain deeds that are anything but noble. But the Baudelaires were not standing in general. They were standing next to Count Olaf. It was Klaus who found the words and after a pause the middle Baudelaire answered the judge’s question. “We’re comparatively innocent,” he said, and a ripple went through the crowd again.

Justice Geoffrey Nettle, writing for the High Court plurality, concluded:

To condone such grossly negligent disregard of statutory protections and fundamental rights as occurred in these cases would be to encourage further negligent infractions of the strict statutory requirements of Div 2 of Pt II of the ACC Act and thus of the common law right to silence. In effect, it would be to imply that, short of intentional or advertent reckless disregard of the ACC Act, ACC officers might proceed however negligently in violation of the Act and the protections which it expressly affords to examinees, and therefore however much in violation of a suspect’s common law right to silence, confident in the knowledge that this Court would wave through the results…

But Justice Stephen Gageler ruled that it was the plurality that risked bringing the administration of justice into disrepute:

Neither in permitting the proceedings to continue nor in implementing procedural measures for the purpose of avoiding substantial unfairness in the conduct of those proceedings can the court seized of jurisdiction in the proceedings realistically be characterised as tolerating or excusing the unlawful conduct which has occurred. The effect of the unlawful conduct on the conduct of the proceedings, in my opinion, is not such as to undermine public confidence in the administration of justice by that or any other court. Courts must be made of sterner stuff lest the public’s confidence in them be eroded by their own timidity.

Justice Michelle Gordon made the same point more pithily: ‘If the ACC’s conduct warrants criticisms of the kind and intensity levelled by the plurality, those criticisms would be relevant only if seeking to punish the ACC.’

In the prosecution of Strickland, Galloway, Hodges and Tucker, who is actually on trial? Is it only the defendants, as Gageler J and Gordon J argue? Or is it also the ACC whose illegal actions must be condemned and deterred, as the plurality suggests? And are the courts (or the Court) somehow on trial too? These questions determined the appeal and were the focus on the separate judgments of Justices Pat Keane and James Edelman, who effectively decided the case.

Based solely on his past decisions on crime examiners’ powers, you might have predicted that Keane J would side with the Commission in general and Gageler J in particular, as he did in 2013. But Keane J held that the outcome of this case turned neither on whether Sage was reckless, nor whether the defendants were prejudiced, but rather on whether the courts owe their fidelity to the executive or the legislature:

In approaching this issue, the primary consideration must be that the courts, as the branch of government directly responsible for the administration of justice, should not give effect to a preference for the wishes of the executive government over the legislative purpose. It would put the courts at odds with the legislature if the courts were to take unusual steps specifically to accommodate a bid by the executive government to overcome a deficit in the integrity of a trial that arose solely by reason of the executive’s disregard of the relevant legislation. That would bring the administration of justice into disrepute.

In other words, the courts duty is to the legislature. It would be wrong, Keane J held, to ’embroil the court in the invidious process of accommodating the wish of the executive government to prosecute the appellants notwithstanding the executive’s disregard of the legislative purpose that such accommodation should not be necessary.’

The Court’s newest member is the only justice not to have previously ruled on crime examiners’ powers. Justice Edelman was also the only justice to openly struggle over whether or not to grant a stay. ‘There are powerful reasons that favour the refusal of a stay in this case’, he observed, noting the seriousness of bribery and false accounting, and the fact that the four defendants are alleged ‘sharks’. And orders could be made to remove much of the forensic disadvantage they face from the ACC’s errors. Yes, the ACC and AFP’s conduct was an attempt, arguably successful, to ‘stultify’ the legislation and common law that bind them, but the defendants were going to be charged with much the same offences on much the same evidence anyway.

However, ultimately two factors swayed Edelman J in favour of the defendants. First, the Thuja agents were the only ones who truly knew what a difference the examinations had made. Expecting the defendants, as the Court of Appeal demanded, to prove that the examinations had helped the people investigating them had a ‘ring of absurdity’ given the AFP’s own lack of records and the impossibility of tracing ‘the precise mental process’ the investigators used to sift through their millions of documents to construct the DPP’s brief. Second, the lack of a strict link between the illegal investigation and the future trial isn’t so important, given the ‘nature and extent’ of the wrongdoing; in particular, it’s no answer to say that the AFP could probably have reached the same ends lawfully. These two findings are very close to Hollingworth J’s rulings, as was Edelman J’s conclusion:

It is telling that neither the ACC nor the CDPP ever suggested that it might be a realistic alternative to recommence, from scratch, an assessment of up to, or even more than, 80 million documents, but without the benefit of the appellants’ unlawful examinations. To use the primary judge’s metaphor, the egg could not be unscrambled. Allowing the trials to proceed would undermine the statutory regime and compromise the integrity of the court.

Justice Edelman’s conclusion added an unnecessary fifth vote to the majority of the High Court that opted to stay the prosecution, but also created a slim six-five majority in favour of a stay amongst the eleven judges who heard the case.

Of the five votes in favour of a stay in the High Court, four belong to the Court’s four oldest judges, who will all leave the Court by 2024. Justice Edelman, the youngest judge, could remain on the High Court for up to two decades after that.

The children heard the scratching of Justice Strauss’s pen again, and the sound of Geraldine Julienne’s enthusiastic voice. “I can see the headlines now!” she cried. “‘everybody is innocent!’ Wait until the readers of The Daily Punctilio see that!” “Nobody is innocent,” Justice Strauss said, banging her gavel. “At least, not yet.”

I’m often left cold by High Court decisions of late, but this one is different. As the Baudelaires foreshadowed while awaiting their own trial, the heart of this case is a question of judgment, rather than legal interpretation:

“Everything seems unfathomable,” Violet said with a sigh, pouring tea for her siblings. “It’s getting so that I can’t tell a noble person from a wicked one.” “Kit said that the only way to tell a villain from a volunteer is to observe everyone, and make such judgements ourselves,” Klaus said, “but that hasn’t helped us at all.” “Today the High Court will do the judging for us,” Violet said. “Maybe they’ll prove to be helpful.” “Or fail us,” Sunny said.

In contrast to the High Court in Lemony Snicket’s tale, Australia’s apex Court did not fail. The High Court presented five distinct voices and each of their reasons for judgment was well-written, clear and convincing. No-one will be left with the impression that this was anything other than a difficult call on a close case, but nor will they have any doubt why each of the authors came down the way they did. More so than usual, the judgments also speak to one another (albeit implicitly), with Edelman J backing the trial judge, Gordon J backing the Court of Appeal (and rebuking Nettle J), Nettle J responding to the Court of Appeal, Gageler J responding to Nettle J and Keane J responding to Gageler J.

But there is one thing that is missing in this case — and I’m not referring to the unfortunately silent voices of Kiefel CJ and Bell J. Rather, what’s missing is the facts. At the heart of this case is a major scandal at the top reaches of Australia’s top two anti-crime agencies. And yet one of those agencies, the Australian Federal Police, has been largely granted anonymity, with the central figure awarded a pseudonym — Schwartz — alongside his or her fellow senior investigators: Webb, Benson and Singleton. We don’t even know the name of the operation they ran or (apart from these four defendants) its outcome. Nor do we know the reasons for the anonymity, other than that they are the result of orders made by a Victorian court (presumably under that state’s Orwellian Open Courts Act 2013.) As a result, there has not been a single media report about how these people, together with Sage and the leadership of the ACC and AFP, brought down a major prosecution.

Nor do we know what these largely anonymous people’s actions cost. Again, courtesy of Victorian suppression orders, Strickland, Galloway, Hodges, Tucker, XYZ and QRS are anonymous, as are the details of their alleged foreign bribes and false accounting. Such suppression orders are typical in preliminary proceedings ahead of jury trials, but concerns about sub judice typically end when the prosecution ends, as it has here; presumably, other concerns are behind the continuing suppression orders in this case, but we have no idea what those are. The upshot is that we have no way of assessing the stakes of the law enforcement errors or the judgment calls of a majority of the High Court in this case.

There are two possibilities. Either up to four ‘sharks’ have gotten away with committing serious crimes without (at least) criminal punishment, or they and the public have lost the option of resolving the accusations against them by way of a jury trial. As Gageler J observed:

Fundamental amongst the considerations to be weighed in determining whether criminal proceedings should be permanently stayed as an abuse of process is “the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime”. That is because a permanent stay order has the practical effect of providing immunity from prosecution to a criminal defendant, leaving that criminal defendant under an “irremovable cloud of suspicion” and leaving the potential if not the likelihood of engendering within the community “a festering sense of injustice”, if not cynicism.

Justice Edelman’s reasons for judgment begin with a compelling list of previous occasions when courts have been asked to stop prosecutions because of law enforcement conduct – be it reneging on an indemnity promise, breaching legal professional privilege or kidnapping a defendant into jurisdiction – but in every one of those cases, the public knew who the alleged offenders were and exactly what they were accused of. Likewise, we know the names and crimes of defendants whose convictions were upheld by the High Court despite police schemes to overcome the right to silence.

The pseudonymous people in Strickland know who they are, as do a select few in the legal and investigative community. However, the judgment calls that courts must make in such cases serve, not merely an adjudicative function between competing parties, but a very public one, as eloquently described by Louis Brandeis just over nine decades ago:

Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that, in the administration of the criminal law, the end justifies the means — to declare that the Government may commit crimes in order to secure the conviction of a private criminal — would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.

How can the lessons of government, including those taught by its courts, be learnt if the facts of the alleged crimes of government and lay people alike are kept from the public?

The Court’s judgment in Strickland is a powerful (if controversial) step in the promotion of the rule of law and the right to silence, but it is only a penultimate one. Only when (or if) the Victorian courts finally lift their suppression orders will the Australian public be able to judge to nobility or villainy of the investigators, prosecutors and courts in this matter.

Violet nodded, and her eyes filled with tears. “You’re right,” she admitted. “We killed a man.” “Accident,” Sunny said firmly. “And burned down a hotel,” Klaus said. “Signal,” Sunny said. “We had good reasons,” Violet said, “but we still did bad things.” “We want to be noble,” Klaus said, “but we’ve had to be treacherous.” “Noble enough,” Sunny said, but the building trembled again, as if shaking its head in disagreement.

About Jeremy Gans

Jeremy Gans is a Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.

As to the use of pseudonyms etc, the UK Supreme Court said in Guardian News and Media Ltd & Ors, Re HM Treasury v Ahmed & Ors [2010] UKSC 1 (27 January 2010) at [2]:

‘Even assuming that the use of initials was justified in many cases, the present appeals show that an order (“anonymity order”) may be made, often by consent of both parties, without the court considering in any detail what is the basis or justification for it. This happens despite Sir Christopher Staughton’s warning, in Ex p P, The Times 31 March 1998, that “when both sides agreed that information should be kept from the public, that was when the court had to be most vigilant.” ‘

Thanks Malcolm. (As many have pointed out, but I opted not to publish on this blog, the identities of the defendants, of Thuja and of Schwartz could all be easily worked out via googling the crimes, the arrests and the date of the arrest.)